Using Song Lyrics In Fiction

I hear this question often — “Can I use song lyrics in my fiction?” I completely understand. Music provides great inspiration for writers. A few lines from “In Da Club” by 50 Cent could be brilliant character insight. Mozart’s “Queen of the Night” aria from The Magic Flute could easily communicate a mood. “Eleanor Rigby” by the Beatles could provide a culture-infused layer to our setting.

But like using any copyright protected work, a writer who wants to use lyrics in their fiction must first jump through a few hoops to avoid copyright infringement. Especially since the music industry vigilantly protects their intellectual property rights.

Music intellectual property

There are two different copyrights that protect music. One protects the musical composition, which includes both the words and the music. Most, but not all, lyricists and composers assign their copyrights to the music publishers. The second one protects the sound recording by the artist, which is usually owned by the recording company.

The first one, the copyright that protects musical compositions, is what you should be concerned with if you plan to use lyrics in your fiction. If you plan to use an artist’s recording in addition to the lyrics, like on your website promoting the book, then you will need not only a license to the musical composition (known as a sync license) but also a license to the sound recording too (known as a master-use license). See my early article for how to obtain sync and master-use licenses when using music and movie clips.

So how do you include lyrics in your manuscript without running afoul of copyright laws? Follow these few steps and you will be on solid legal ground.

Determine if the music is in the public domain

Music in the public domain, as defined by the US Copyright Law, is very specific. The general guideline to follow is: any musical composition created and/or recorded before 1923 falls within the public domain. That said, musical works in the public domain can also include any music the owner has given freely to the public regardless of when first published, or any music whose copyright has expired, like music between 1924-1963 that the copyright for was not renewed (check the online searches available with the US Copyright Office).

If your thought is to wait for a music copyright to expire, especially from contemporary artists, that wait can be lengthy because copyrights published after 1923 but before 1978 are protected for 95 years from the date of publication. After 1978, copyrights span the life of the artist plus 70 years.

If you find that your song is in the public domain then use it in your fiction without fear of violating a copyright and receiving a cease and desist letter from the copyright owner’s lawyer.

Determine if your use of the lyrics maybe “Fair Use”

We have talked about Fair Use frequently here at Sidebar Saturdays. As a reminder, Fair Use under the US Copyright Law permits limited use of copyright protected material without permission from the copyright holder. Courts consider four factors to determine if the use of a copyright protected work (like song lyrics) qualifies as Fair Use:

The purpose and character of the use — is your project for-profit or non-profit, for educational purposes, criticism, or a “transformative use” that makes the original work into something qualitatively different (like satire, criticism and parody)?

The nature of the copyright protected work — is the music a famous pop chart hit or something lesser known, say from music academia or an instrumental background piece?

The amount of the copyright protected work used in your project.

The effect of the use on the potential market of the copyright protected work.

Fair Use analyses are subjective, fact-specific and decided on a case-by-case basis. This means Fair Use has a lot of gray areas, and judges weigh the facts and apply the factors in unpredictable ways. Also, you should remember that to assert Fair Use, you would have to be sued, i.e., Fair Use is a defense.

Using song lyrics in your fiction without permission will most likely violate some of these factors, making it hard to claim Fair Use. If we run through the factors, you will see why. Once published, your book will be sold on the market, meaning your endeavors are for-profit (one of the four factors the courts weight heavily because you are using someone else’s copyright material to make a profit). Most likely you will not affect the market for the copyright protected song, factor number 4. Potential customers looking to purchase that song would not go to your book with the snippet of lyrics instead of downloading the song. Depending on the number of lyrics used, you might be inserting a substantial amount of a song into your manuscript. Lyrics, like poems, are short. Two lines of lyrics could easily be 20% of a song. While there is no concrete number in the case law, 20% seems significant from a short peice of work. As for the popularity of the music, a judge could weight factor two heavier for a pop chart hit verses some unknown or obscure song.

How then do you secure permission? Read on.

Locate the music copyright owners

To locate the songwriters and lyricists and/or the music publishers of the song you want to use, search one of the main performing rights organizations like BMI, ASCAP, or SESAC. While these organizations deal with performance licenses so the artists are paid when the songs are played, the databases do contain contact information about the lyricist, composer, and music publisher too.

Seek permission

Once you know who owns the copyright and how to contact them, seek permission to use the lyrics. For the traditionally published crowd, you cannot rely on the publisher to obtain permission. Publishers generally refuse to publish a book with lyrics, no matter the number of lines used, if permission has not been granted. Why? Because publishers are risk averse and hate being sued. Publishers will force you to secure permission and pay the royalty. Standard publishing contracts contain a representation that your work does not violate a third party’s copyright. If you do not secure permission to use the lyrics and the publisher is sued, guess who is liable for the infringement? Bingo! You.

As for the self-publishing crowd, if you decide to use lyrics without permission even though you feel you are within the Fair Use boundaries, then you assume the risk of being sued and having to spend money to defend your Fair Use claim. Maybe that money could have been used to secure permission instead (and possibly for a lot less). So secure your permissions where needed.

Most requests to reprint lyrics in a publication will go to the performing rights organizations I noted above via a link to a form on the organization’s website. The request includes information about the nature of your writing project, the lyrics you want to use, and the expected level of publication in terms of the number of books published and the cost per book. Once you submit the form, generally you will receive a response with in two months. If permission is granted, a license fee will be provided in the response.

Here is where things can get expensive or not depending on the song and its popularity. If the license is a flat fee, permissions can cost a writer between $10-100 on the low-end, or $10,000 or more on the high-end. The license can also be based on a fee per number of books sold, which means the price tag is driven by the popularity of your book. For example, if the license is $100 per every 1000 books sold and book sales reach 2000, the license fee is $200. Should your book become a bestseller with $2 million copies sold (good for you), the license fee jumps to $200,000 (not so good for you).

Other options

If you are unable to secure a license, or the license is cost prohibitive, there are alternatives.

One easy fix is to use the song title. Titles are not copyright protected. A song title can achieve trademark protection, but as long as you avoid using the song title in the title of your book or with any promotional efforts, you should not violate anyone’s trademark in the song title.

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